Paris: The Capital of Negotiation?

Paris has recently had a reputation for confrontation. But a hundred years ago  the allied powers (principally France, the US and Britain led by Clemenceau, Woodrow Wilson and Lloyd George respectively) were in Paris negotiating the Treaty of Versailles. Clemenceau had just survived an assassination attempt. He observed wryly that even after the greatest war in history a Frenchman had taken seven shots at him at close range and only hit him once: proof if it were needed that however dark the circumstances humour always has a role to play.

A hundred years on and the second weekend in February saw the international mediation community (including three of the Brick Court team) descend upon Paris for the festival of negotiation that is the ICC Mediation Competition. Law students from France, the US and Britain and upwards of thirty other countries from all across the globe descend to compete in a mediation moot. Professional mediators conduct the mediations and score the students’ performances.

Political references are still not far away: this year the running gag at the conference was the very notion that Brits should be teaching anybody about process design or negotiation.

The students are hugely enthusiastic and negotiate skilfully, always in English and often a long way from their native language.

They relish the co-operative style of working, clearly enjoying the change from the orthodox models offered in their professional training. Each team gets a confidential briefing setting out their party’s deeper interests and plans for the future. The problems usually offer some crock of gold in terms of future collaboration. One party turns out to have a warehouse full of size 8 left shoes. But wait: the other party has a warehouse full of size 8 right… well you can imagine. Always a win-win. It is great to have the chance of a happy ending and a refreshing change for the jaded ADR hacks who officiate.

And yet, and yet…. It can lead to a relentlessly collaborative approach that ignores the difficult issues and the hard exchanges. We all know that if you don’t acknowledge the anger/disappointment/affront /betrayal that has got you into the mediation you are going to be in trouble later; if you don’t let the monsters into the room they will wait outside and bite you later.

Back in the real world I often recall for parties the shortest opening statement that I have ever heard: three words, the first beginning with “F”, the second being “you”  and the third an anatomical term. As a statement of case it was not only more succinct than the sixteen pages of close contractual analysis offered on the other side, it also kick-started the negotiation far more effectively. Mediators would recognise immediately the opportunity that those words offered. We settled, admittedly at 10 pm. I don’t recommend the three-word approach as a formulation to get you into the finals in Paris. But, as the 2019 winners,  University of Auckland team,  clearly  grasped, some grit in the mix is essential. “This why I am angry. Why are you angry?”

As I sat in the departure lounge I contemplated the zero-sum mediation I was returning to conduct in London; claims on the  aviation insurance market arising from an air crash. Collaboration? Er…no. Future business? Um… with the airline in liquidation probably not.

Sitting at the gate I was surrounded by tired children wearing Micky Mouse ears and their even more tired parents, clearly a tremendous trip. They had all been to Disneyland.

Perhaps we all had.

Geoff Sharp, John Sturrock and Bill Wood attended the Paris competition.

Of Team Selection And Other Trials

Mediators think they probably have the best job in the world and they do not often make a plea for sympathy. But here goes.

As parties using mediation grow in confidence they have increasingly firm ideas as to how to conduct the mediation day. They are likely to have firm plans, for example, as to who should speak in the plenary session, when the first offer should be made and when and if clients should speak direct. All good.

Interestingly they also have firm ideas as to how the other side should conduct themselves. More difficult. We frequently mediate between parties who approach the mediation day in radically different ways and a conflict develops over process as intense as the dispute itself. One side may want the first offer at 10:15 am. The other wants an exhaustive series of meetings between the experts before any negotiation can happen. Choice of representative is particularly tricky. It could be “Where is Mr. Jones. None of the people attending know anything about this dispute” or as easily “Why is Jones coming? He is far too close to this dispute. He will never let them settle.”

This sort of dispute can start bubbling away well in advance of the mediation and the parties try to get the mediator involved. It happened today. I was copied in on an exchange in which one party suggested that both sides’ experts should attend next week’s mediation. His opposite number went straight into Caps Lock: “Our Mr. Jones will NOT BE ATTENDING”.

Unsurprisingly attempts to pick the other side’s team can touch a nerve.

“Good morning Sir Alex.

Arsene, how nice to hear from you. How can I help?

Well, I just wanted to share a few ideas about your back four for Saturday’s game.

Yes absolutely. Always worth listening to. Fire away…”

These rows can be an unhelpful start to the mediator’s involvement in the dispute. It is hard to build rapport with a party when your first telephone call   apparently adopts criticism of their strategy.   One has to tread carefully to avoid seeming to have adopted the opponent’s position. Following a volcanic discussion with Party A you call Party B. “Am I right in getting a slight sense that the parties have different views about representation?”

We will try to resolve these issues. They can give the mediator lots of clues to the psychology of the dispute. And parties do sometimes agree to review and change their approach. But in the end both sides only have the sanction of withdrawal as their sure remedy. The other side’s approach is the other side’s approach and you either work with it or you don’t mediate at all.

So, we will do our best but in the end it is your call.

Aftercare, Chardonnay and Arizona

Sitting on a panel of mediators in front of an audience of US insurance lawyers last month the topic of mediation aftercare came up. The view on all sides was that when mediations do not settle on the day the mediator’s involvement in the days and weeks that follow is now routine and expected .

Parties expect the mediator to be in contact by phone and email, maybe even over coffee or in a reconvened smaller group. These exchanges can continue over weeks, even months. I have once or twice attended court in mid-trial just before the lunch adjournment at the invitation of the parties to meet them and try to break the deadlock.

Some counsel like a light touch, others want the mediator to push hard. Except in the few cases of truly angry termination (and sometimes even in those) aftercare is taken for granted

Why is it so productive? Companies and individuals can get painted into a corner on the day of the mediation. People get tired and frustrated. Big organisations can simply take time to process a new view of a case as they turn the proverbial super-tanker.

In the hour the panel took to address the conference (in Phoenix, Arizona) I received two text messages.

The first was an unremarkable inquiry from my daughter as to why there was no chardonnay in the fridge at home. But the second from the general counsel of a major media company read simply “Deal Done!”.  A potentially nasty trial between the organisation and its departing Chief Executive had been due to start the next working day. I had overseen an exchange of offers that morning in Phoenix (the afternoon in London) by telephone and email.

I would have punched the air but I was too busy being English.  Sometimes the aftercare seems to be more challenging and more rewarding than the surgery itself.

Phexit: A Beginner’s Guide

Watch out all London insurance dispute specialists! It turns out it is not only the financiers of Dublin. Frankfurt and Paris who are relishing current opportunities.

When the American Bar Association’s Insurance Litigation Section meets in Tucson Arizona on 1st March delegates will be offered a number of fascinating break-out discussions (including one on timely notification of claims with the irresistible title It’s Too Late Baby, Now It’s Too Late).

But the eye-catcher is this one scheduled for 12.05pm:

Breakout: “PHEXIT”: Why Policyholders May Pull Out of Britain and Why London May Be at Risk of Losing Its Grip on Insurance Coverage Arbitrations

Phexit. You heard it here first.

J. G . Mean and (Brackets)

My mediations are haunted by a fellow called J. G. Mean who just keeps cropping up. I can be as creative as I like but all too soon JG is there in the room. You encourage some venting, explore various forms of reality, re-frame a little, season the whole boiling with some cognitive dissonance and stand well back – only for somebody to say, “Just Get Me A Number!”.

Now there are various antidotes to JG*. (And in the right place, at the right time JG can be hugely welcome.) But the antidote I have always wanted to try is The Bracket.

We have known for many years that our colleagues in the US were using brackets routinely and successfully to settle cases. I have used them myself, just not in this country. This is the process whereby rather than simply trading offer and counter-offer a party makes a conditional offer: “I will go to £500,000 but only if you come down to £1 million” or more simply says, “My bracket is £500,000 to £1 million. Will they work in that bracket?”.

A word of warning here to our transatlantic readers. If you persevere with this post you will learn nothing. Indeed you may  feel rather like Roger Federer reading a schoolboy’s over-excited essay about his first tennis lesson: simplistic  and with the odd  mistake. Apologies

My own attempts to promote the use of brackets in London have met with abject failure. The parties and their advisors look at me as if I have just suggested trial by combat. “(Sigh) Just get me a number, Bill”

That is, until last week.

Now it is true that last week circumstances were not entirely typical.

First, there were US as well as London lawyers in both rooms so each side had a source of comfort and reassurance as they faced this unusual and discomfiting challenge. Some may object that the record is therefore wind-assisted.

Second, I have to say the mediator was unusually persuasive. Sensing that the door was just slightly ajar I came up with this successful formulation: “Please, please, please be my first London mediation to settle using brackets”. I’ve always thought abject supplication was an effective dispute resolution technique and so it proved in this case.

The magic of brackets, I can now tell you on the basis of extensive experience, turns out to be “the mid-point”.

Of course, in one sense a bracket is at best a conditional offer of the lower figure in the bracket. And the “condition” usually remains unfulfilled. This is because the counter-proposal tends to be another different bracket. So the response in the above example might be: “No we can’t accept your bracket. But we will come down to £1.4 million if you come up to £800,000.”

At a purely prosaic level nothing much has been achieved. But there is poetry here if you look for it. Turns out the bracket connoisseurs are keeping an eye on the mid-point because the most important message of the bracket is that the mid-point of the range is implicitly being signalled as the killing zone for the deal.  The parties tend (at least in private) to say “I have moved my midpoint” more readily than they say they have moved the bracket itself. “She must like my mid-point”, they muse to the mediator.

The midpoint is not being formally offered. It is not even being referred to explicitly. But it shimmers temptingly in the half-light of the negotiations.

Since last week’s triumph things are back to normal. I have once again failed to sell brackets in a couple of purely domestic mediations (“JG! How nice to see you!”). The gleam in my eye is no doubt even more off-putting than before.

Because I have seen the future. Brackets will be here soon, with no more than the customary time-lag, just like hamburgers, rock ‘n’ roll and indeed mediation itself before them.

And they work!

*The best of them set out in the excellent “Making Money Talk” by J Anderson Little